|
|
In the Community, lawmaking power is vested in the Commission, Council and Parliament acting together in a formula that depends upon the policy area and that is set out in the Treaties. As in all modern governments, the Community legislature relies upon its bureaucracy to produce the more detailed rules that make the system work in practice. One of the principal classes of Community rules are so-called implementing rules.14 They can be found in many different policy areas, from agriculture, to the environment, to transportation and generally fill in technical gaps, adapt legislation to changing circumstances, or bring it up-to-date with the newest science.15
Implementing rules may be issued following one of three basic procedures. Some earlier Community legislation gives the Commission sole rulemaking power. On the other extreme, the Council tends to retain decisionmaking power for itself when an issue is particularly sensitive, directly deciding the matter on a proposal from the Commission.16 The third and by far most common way in which implementing rules are adopted is by the Commission acting under the indirect control of the Council, so-called comitology. Control is indirect because a committee of member state experts is charged with day-to-day supervision of Commission rulemaking and the Council itself is called in only if the Commission and committee, after negotiation, are unable to agree.
In comitology, Commission discretion is more or less fettered depending upon which of the three types of committees -- advisory, management or regulatory -- is established to monitor rulemaking.17 These are set out in the Comitology Decision,18 which serves as a framework upon which the Community legislature generally relies when it designs the administrative process to be used in implementing a particular piece of legislation. Although comitology procedure changed considerably in June 1999 with the enactment of a new Comitology Decision, certain basics have remained in place. One or two representatives from each of the member states sit on the committees, a Commission representative serves as chair, and the representatives vote by qualified majority. In all cases, the Commission must submit its proposal for an opinion. When an advisory committee is involved, its opinion does not carry formal weight and the measure goes into effect regardless of the committee's vote. If either a management or regulatory committee votes against the Commission proposal or, in the case of a regulatory committee, fails to issue an opinion (because a qualified majority in favor of the Commission proposal does not exist) the measure is sent to the Council.
There exist two essential differences between the management and
regulatory procedures. First, management committees have a veto power while
regulatory committees have the greater power of assent. Although the point
might seem a bit academic, it is actually quite important since, in the first,
the Commission must simply get enough committee members on its side to escape a
veto while in the second it must obtain the votes necessary for a favorable
opinion. Second, in the management variety, the Commission measure is adopted
immediately after the committee delivers its opinion, even if the opinion is
negative, whereas, in the regulatory variety, the Commission must wait and give
the Council the opportunity to adopt a different measure.
Before 1999,
management and regulatory committees were further subdivided into two different
classes. With a filet (safety-net) management committee, the Commission
could, if it chose, defer application of the measure for a period no longer
than one month from the date of communication to the Council and within this
period the Council could, by qualified majority, adopt a different decision. If
the management committee was of the contre-filet (double safety-net)
variety, the Commission was required to defer application
for a period to be laid down in the legislation, not to exceed three months
from the date of communication to the Council, during which time the Council
could adopt a different decision. Likewise, once a regulatory committee issued
its opinion, one of two routes could be taken. Under the filet
procedure, the Commission submitted a proposal to the Council, which could act
upon the proposal by qualified majority. If the Council failed to act within a
maximum of three months, then the Commission proposal took effect. Under the
second, contre-filet procedure the Council had an additional option: it
could, by bare majority, vote against the proposal, thus making it
easier for the Council to exercise its veto power.
In June 1999, in an effort to simplify the administrative process, the contre-filet varieties of both management and regulatory procedures were eliminated. Further, as discussed in greater detail below, Parliament now is a regular participant in the rulemaking process.19 When a draft measure sent by the Commission to a comitology committee is intended to implement a law passed by both the Council and Parliament ("co-decision"), Parliament may vote a resolution opposing the measure. In such cases, the Commission is required to "re-examine" the draft measure although it is not compelled to accommodate Parliament.20 If a regulatory committee delivers an unfavorable opinion or no opinion at all, Parliament must be informed of the Commission's proposal to the Council. If Parliament opposes the proposal, it informs the Council, which may "where appropriate in view of any such position" act on the Commission's proposal.21 Like the Commission, it appears that the Council is required to take account of Parliament's position, but is not bound by that position.
COMITOLOGY CHART
Advisory Procedure
| Parliament: | When Commission draft measure based on co-decision legislation, may pass resolution indicating that draft measure "would exceed the implementing powers provided for in the basic instrument." Commission must "re-examine" draft measure and may submit new draft measure to the Committee, continue with the procedure, or submit a proposal to the Parliament and Council on basis of the Treaty. Commission is not bound by resolution. |
| Committee: | Delivers opinion on Commission draft measure. Commission must take "utmost account" of Committee opinion but is not bound by it. |
| Council: | No authority. |
Management Procedure
| Parliament: | When Commission draft measure based on co-decision legislation, may pass resolution indicating that draft measure "would exceed the implementing powers provided for in the basic instrument." Commission must "re-examine" draft measure and may submit new draft measure to the Committee, continue with the procedure, or submit a proposal to the Parliament and Council on basis of the Treaty. Commission is not bound by resolution. |
| Committee: | Delivers opinion on Commission draft measure. Commission adopts measures which apply immediately. If measures are not in accord with Committee opinion, Commission communicates them to Council. Application of measure may be deferred for up to three months. |
| Council: | May take different decision by qualified majority within period, not to exceed three months, prescribed in basic instrument. |
Regulatory Procedure
| Parliament: | When Commission draft measure based on co-decision legislation, may pass resolution indicating that draft measure "would exceed the implementing powers provided for in the basic instrument." Commission must "re-examine" draft measure and may submit new draft measure to the Committee, continue with the procedure, or submit a proposal to the Parliament and Council on basis of the Treaty. Commission is not bound by resolution. |
| Committee: | Delivers opinion on Commission draft measure. Commission adopts measure if in accordance with Committee's opinion. If Committee opinion not in accordance or if no Committee opinion delivered, Commission submits proposal relating to measure to be taken to Council and, if draft measure based on co-decision legislation, informs Parliament. |
| Parliament: | If considers that proposal exceeds implementing powers conferred in basic instrument, informs Council of its position. |
| Council: | May, where appropriate in view of Parliament's position, act on proposal by qualified majority within period, not to exceed three months, prescribed in basic instrument. |
| Commission: | If Council votes against proposal, Commission may submit amended proposal to Council, re-submit its proposal, or present a legislative proposal on the basis of the Treaty. If Council, within the prescribed period, has neither adopted the proposal nor indicated its opposition, Commission adopts the proposed implementing act. |
14 The other major form, technical standards drafted and issued by private standard-setting organizations, raises additional issues and falls outside of the scope of this paper.
15 See generally Guenther F. Schaefer, "Committees in the EC Policy Process: A First Step Towards Developing a Conceptual Framework," in Shaping European Law and Policy: The Role of Committees and Comitology in the Political Process 3, 17 (Robin H. Pedler & Guenther F. Schaefer eds., 1996) (describing functions of what he calls rule-interpreting and rule-setting committees).
16 Throughout this paper, Council is used to refer both to COREPER, which is staffed by senior national officials and does the preparatory work for Council meetings, as well as government ministers sitting together in the Council. COREPER is probably the most relevant for rulemaking because the national officials familiar with the technical issues are to be found there and government ministers can be expected, on the whole, to defer to their views.
17 This discussion is partly drawn from Christoph Demmke, Elisabeth Eberharter, Guenther F. Schaefer & Alexander Türk, "The History of Comitology," in Shaping European Law and Policy 61 (Robin H. Pedler & Guenther F. Schaefer eds., 1996) and Ellen Vos, "The Rise of Committees," 3 European L. J. 210 (1998). Legislative reform enacted in June 1999 codified existing practice on choosing among regulatory, management, and advisory procedures in enabling legislation. See Council Decision 1999/468/EC, art. 2, 1999 O.J. (L184) 23, 24. For rulemaking involving significant normative choices, the regulatory procedure, which most significantly curbs Commission discretion, is to be used. For rulemaking involving routine administration of Community programs, e.g. programs relating to common agricultural policies, the management procedure is to be used. The remaining catchall provision designates the advisory procedure for "any case in which it is considered to be the most appropriate." Id. art. 2(c).
18 Council Decision 1999/468/EC, 1999 O.J. (L 184) 23, repealing Council Decision 87/373/EEC, 1987 O.J. (L 197) 33.
19 In addition, application of management committee measures may now be deferred for up to three months. Id. art. 3.
20 Id. art. 8.
21 Id. art. 5.6.
Top|Contents|Previous|Title|Next